New 4th Amendment/qualified immunity case
Messerschmidt v. Millender, handed down today, by the U.S Supreme Court.
Girlfriend is moving out of place where she lived with boyfriend, a Crips member with a very long rap sheet. He attacks her, tries to throw her from a second floor landing. She speeds away while he fires five shots at her from a sawed-off shotgun. She reports situation to police, adding that boyfriend might be staying at the house of his stepmother.
Police get a warrant to search stepmother's place for all firearms and gang-related material, and execute it, seizing a shotgun that belonged to the stepmother. She sues under 42 USC 1983, apparently arguing that (1) the warrant called for searching and seizing all firearms, when only one, of a specific known appearance, had been used in crime and (2) there was no probable cause to search for gang-related things.
Which in turn raised the question of qualified immunity -- the concept that an officer cannot be sued for a constitutional violation unless a reasonable LEO would have known that it was a constitutional violation. The majority rules that a reasonable officer would not have realized that it was a constitutional violation (assuming that it was indeed such), and qualified immunity applies.
Sotomayor dissents, with an interesting note:
"They did so for the asserted reason that the search might lead to evidence related to other gang members and other criminal activity, and that other “[v]alid warrants commonly allow police to search for ‘firearms and ammunition.’ ” See infra, at 8–9. That kind of general warrant is antithetical to the Fourth Amendment."
Breyer concurs -- with an opinion only six sentences long!
Kagan concurs in part and dissents in part. She agrees that the firearms part of the warrant could be covered by qualified immunity, but disagrees as to the part relating to evidence of gang membership, since that is not illegal.
To me, there is one startling passage..;. but then this case did come out of California. Boyfriend had been arrested 31 times, including three times for assault with a deadly weapon, three times for other violent offenses, and nine times for firearm offenses. And he's out on the street....
How could a warrant be issued for "all firearms"? That does not seem to be specific enough to be legal. Was the seized shotgun illegal? If not, why was it seized?
Of course the real question is, why isn't the judge(s) who let the scum out on the streets in jail?
Posted by: Dennis o'H at February 22, 2012 04:21 PM
This guy reminds me of Harry the Horse (Guys & Dolls): "I stand on my record: toity-tree arrests — and no convictions!"
It's almost a running joke in Boston. Some innocent kid gets killed by mistake in a gang shooting. The mayor (affectionately known as "Mumbles") calls for stricter gun control laws as the solution to the problem. When and if they get around to catching the shooter the newspapers blandly note that the 22 year old gang banger has 29 arrests and 5 felony convictions including ADW and armed robbery, but was out on bail after his most recent arrest (for attempted murder).
Posted by: Ken M at February 22, 2012 05:19 PM
So the majority didn't rule on the Consitutionality of the warrant itself? So there's no way for the next officer to know "he can't do that" so he'll get qualified immunity as well?
Off to read the ruling...
Posted by: Matthew Carberry at February 22, 2012 06:00 PM
No agent of the government should ever be allowed immunity, qualified or not. If you are going to be involved in the law, you should know it. For police, every municipality should have monthly legal training. If you do something wrong, you get punished. IMO, no investigation should ever be made by the agency or any other government agency. All investigations should be referred to a citizens investigative group assigned by random selection of the voters of the municipality with no repeat selections more often that every other year.
IMO, giving government employees any immunity violates equal protection of the 14th. Equal is equal. Any special grouping is unequal. Period.
The 4th requires particulars to be stated. This holds the meaning that the officer seeking the warrant must state what it is exactly they are searching for. Cooley stated that this was so because it is as easy for the officer to destroy evidence of innocence as it is to find evidence of guilt. But today we live in a system where the 4th is not applied against the states, Barron 1833, and the courts have, using a court invented incorporation doctrine, pulled a bunch of garbage out their ----- with holes large enough to drive a truck through all the while claiming it's 4th amendment.
In this case, I would guess that the court figured out that a "reasonable" LEO is pretty ignorant of the language of the Constitution, a position that applies to 99% of the people in the country.
Posted by: fwb at February 23, 2012 08:47 AM
I know it's not precisely the same, but anyone else ever told by a cop that "Ignorance of the law is no excuse!"?
I guess that only applies if you're not a cop...
Posted by: Anonymous at February 23, 2012 08:52 AM
While I am a 'Law & Order' guy, and have two brothers who are law enforcement officers, I wholeheartedly believe that the police must play by the rules (U.S. Constitution) also.
The egregious erosion of 4th Amendment rights under the guise of being 'tough on crime' is not an acceptable substitute for the actual incarceration of violent offenders, and in some cases the death penalty.
Posted by: KlemKadiddlehopper at February 24, 2012 04:20 AM
If "ignorance of the law is no excuse", the perfect defense in just about any case would be to subpoena the law. All of it. It would be impossible to enter the courtroom for the total mass of paper.
Now we find in the case of Gibson Guitar (violation of the Lacey law), we are subject to FOREIGN LAW, and can be prosecuted and imprisoned for laws that are not even on the books in those countries.
Communist countries routinely arrest their subjects and then decide which laws they have violated. Are we there yet?
Posted by: Huapakechi at February 24, 2012 07:31 AM
With some irony, I must point out that there is a federal felony regarding officers of the law (federal or state) engaging in enforcement of any law or order that deprives or causes to be deprived from any person any right guaranteed by the constitution or laws of the United States. The history of the law itself was clear, established in 1866, challenged the same year, and then the 14th amendment was established to ensure the power to enforce it, and it was reestablished in 1871 with the 1866 act inclusive.
This law is title 18, sections 241 and 242. Title 42, sections 1981-1985 were also part of the 1871 act, providing direct civil claims as well as the criminal. However, the triggering point for the civil is identical as to for the criminal claim. Under title 18, section 4 of the US code, any person having knowledge of such a criminal act must make it known to a court at their soonest possible date. Under title 18, section 3, any failure to act is an accessory after the fact. Under title 18, section 2, anyone ordering that the act be done is a principle to the act.
It's quite possibly one of the least enforced laws on the books, but the purpose was simple:
‘The end is legitimate,' the Congressman said, ‘because it is defined by the Constitution itself. The end is the [392 U.S. 409, 444] maintenance of freedom . . . . A man who enjoys the civil rights mentioned in this bill cannot be reduced to slavery. . . . This settles the appropriateness of this measure, and that settles its constitutionality.' -- Jones v. Mayer Co. 392 U.S. 409 (1968)
This includes the right to limited warrants, to property, to privacy, to travel, all those things in the Bill of rights, and all those things which were not written for being 'self-evident'. Ignorance of the law is no excuse, there is no immunity granted under Title 18 Section 242, nor could there be, as it was enacted against the enforcing branch itself, and if death results from the act, life imprisonment or the death penalty may apply.
Posted by: Old Wolf at February 24, 2012 08:44 AM
She agrees that the firearms part of the warrant could be covered by qualified immunity, but disagrees as to the part relating to evidence of gang membership, since that is not illegal.
This statement makes me wonder if Justice Kagan believes that shotgun ownership is illegal, since she draws such a distinction between that and gang membership. I wonder if the Justice should not make a habit of removing her red tinted glasses before examining Constitutional issues.
Posted by: Anonymous at February 24, 2012 10:07 AM